Disability Payments in a Divorce
Disabled veterans going through divorce may be concerned about losing a significant part of their federal benefits to their spouses and children. A divorce court cannot divide the benefits as marital property since this is specifically forbidden under the Uniformed Services Former Spouses’ Protection Act. However, many states, including California, consider disability payments when calculating family support obligations.
Federal law specifies that disability payments are "exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure." Some claimed this language prevented disability amounts from being considered by a divorce court. The matter was resolved by the U.S. Supreme Court in the landmark case of Rose vs. Rose, where the Court ruled that veterans' benefits "can and should" be considered as income when a divorce court determines family support obligations. Essentially, the Court stated that federal protections are intended to aid not just the veteran but also his family.
Application in California
In California, each parent has the obligation to support his family. The law assumes that the custodial parent contributes support, but the noncustodial parent's share is determined under child support guidelines unless exceptions apply. The guidelines take into account all revenue earned by the spouses, including veterans' disability benefits. A couple may agree in writing on a support amount different than that provided by the guidelines, subject to court approval.
Garnishing Veterans Benefits
Garnishment is a manner of debt collection in which the court instructs an employer or agency making payments to an individual to retain a part of the amount to pay directly to a creditor. Federal law permits the garnishment of disability payments to meet family support obligations to the extent that the veteran waived military retirement pay to receive the benefits. Only the part of the disability paid in lieu of retirement can be attached. Before garnishment can occur, the ex-spouse must file a request for apportionment with the Veterans Administration asking it to assign a certain portion of the benefits to the spouse or a minor child. California courts permit the garnishment of veterans benefits for child support and spousal support to the maximum extent allowed under federal law.